Essendon Football Club v Australian Sports Anti-Doping Authority

by DLA Piper
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[author: Thomas Zhong]

Federal Court Action

On 13 June 2014, the Essendon Football Club (an  Australian Rules football club) launched legal action in the Federal Court of Australia against the CEO of the Australian Sports Anti-Doping Authority (ASADA), the Australian branch of the World Anti-Doping Authority (WADA).

The court action was launched in response to 34 “show cause” notices issued by ASADA to players at the club for the supplements regime administered at Essendon in 2012. The show cause notices require the players to demonstrate why they should not be placed on the WADA Register of Findings, the step immediately preceding the issuance of infraction notices.

The Federal Court action alleges that ASADA’s joint investigation with the Australian Football League (AFL) was unlawful and in breach of the ASADA Act. The legal team for Essendon submit that there are evidentiary flaws within ASADA’s case and  that nothing in the ASADA legislation allows it to conduct a joint investigation with another outfit.

The Federal Court hearing is set down for 27 June 2014.

The ASADA investigation

The investigation stems from the supplements regime administered in 2012 by sports scientist Stephen Dank. The supplement allegedly administered is Thymosin Beta 4, which is a substance banned under Class S2 of the WADA Code. It remains to be seen whether ASADA has compiled sufficient evidence to issue infraction notices against the 34 players.

The players and the club has repeatedly insisted that they are not guilty of wrongdoing as the players were provided with written guarantees that the substances to be administered were compliant with the WADA Code. However, this may not be relevant as the WADA Code is applied with a strict liability. This means that an anti-doping rule violation occurs whenever a prohibited substance is found in the athlete, regardless of intention.

New revelations reveal that the AFL, ASADA, Essendon and the Australian government entered into negotiations during the early stages of the investigation. These negotiations allegedly included statements to the effect that players were not the focus of the investigation and that they could plead a “no fault” or negligence defence under the WADA Code to avoid any sanction. This is one of the pillars of the players’ legal defence.

AFL charges against Essendon for governance failures

In August 2013, the AFL confirmed it had received an interim report of ASADA’s investigations into the supplements regime.

The AFL CEO issued charges against the Essendon Football Club and four officers of the club for. Some of these charges include:

  • engaging in practices that exposed players to significant risks to health and safety as well as the risk of using substances prohibited by the AFL Anti-Doping Code and the WADA Code;
  • failing to devise or implement any adequate system or process to ensure that all substances provided to and used by players were safe and were compliant with the AFL Anti-Doping Code and the World Anti-Doping Code;
  • failed to meaningfully inform players of the substances the subject of the program and obtain their informed consent to the administration of the substances;
  • failed to take any appropriate and adequate action when it became aware of facts that strongly suggested that unsatisfactory and potentially risky practices were occurring in relation to the administration of supplements.

In response to these charges, the coach of the Essendon football club lodged a writ in the Supreme Court against the AFL, pleading that the coach had been denied natural justice and that the charges should be heard by an independent tribunal instead of the AFL as the AFL had an inherent conflict of interest.

This proceeding was settled and the club was banned from the 2013 finals series, fined $2 million and stripped of draft picks in the 2013 and 2014 drafts. The coach was suspended for a year and penalties were also handed out to two of the three other club officers.

Workplace Health and Safety

A workplace health and safety investigation is being undertaken by WorkCover Victoria, a government body. WorkCover Victoria will be investigating alleged risks to health and safety of the players in the administration of a drugs. This investigation takes place in light of comments extracted from an internal review of the club’s administration, which revealed a “disturbing picture of a pharmacologically experimental environment never adequately controlled or challenged or documented within the club”. The sports industry is founded upon the marvellous feats of athletes and their competitive urge to succeed. However, this “win at all costs” attitude must be tempered by the duty of care which clubs, as employers, owe to the players.

With three bodies (Federal Court, ASADA and WorkCover) investigating this case, the legal battle is likely to span for years to come. Watch this space for more updates on the Australian sporting legal landscape.

 

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DLA Piper
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